282 F.

3d 103

In re HOLOCAUST VICTIM ASSETS LITIGATION.

Jacob Friedman, on behalf of himself and all other persons of
all national origins, ethnic groups, races, creeds and colors,
similarly situated as victims and survivors of the Nazi
Holocaust, Plaintiffs-Appellees,
v.
UBS AG, Credit Suisse Group, Defendants-Appellants.
Docket No. 01-7531.

United States Court of Appeals, Second Circuit.

Argued January 16, 2002.
Decided February 15, 2002.

Stephen W. Preston (Roger M. Witten, Gregory S. Chernack, Christopher

P. Simkins, on the brief), Wilmer, Cutler & Pickering, Washington, DC,
for Defendants-Appellants.
Burt Neuborne (Morris A. Ratner, Lieff, Cabraser, Heimann & Bernstein;
Deborah Sturman, Milberg Weiss Bershad Hynes & Lerach, on the brief),
New York, NY, for Plaintiffs-Appellees.
Before: VAN GRAAFEILAND, CABRANES, and STRAUB, Circuit
Judges
PER CURIAM.

Defendants UBS AG and Credit Suisse Group ("Swiss Banks") appeal from an
April 4, 2001 order entered on April 9, 2001 by the United States District Court
for the Eastern District of New York that excluded certain Swiss corporate
entities from receiving releases under a settlement agreement from further
liability for having utilized slave labor during the Second World War.

* In a Memorandum and Order dated July 26, 2000, the District Court
approved of the five settlement classes set forth in the Settlement Agreement.
One such class was entitled "Slave Labor Class II," which included individuals

who performed slave labor during the Second World War in businesses owned,
controlled, or operated by companies based in Switzerland.1 In that
Memorandum and Order, the District Court announced that Swiss corporate
entities, including those not party to the litigation, seeking to be released from
further liability to members of Slave Labor Class II, must "identify themselves
to the Special Master." In re Holocaust Victim Assets Litig., 105 F.Supp.2d 139,
162 (E.D.N.Y.2000). Failure to self-identify would result "in the denial of a
release and permit those who have claims against those entities to pursue such
claims independently of this lawsuit." Id. The Swiss Banks defendants objected
to the self-identification requirement on August 4, 2000. Nevertheless, the selfidentification requirement was incorporated in the District Court's Final Order
and Judgment dated August 9, 2000, approving the Settlement Agreement. In re
Holocaust Victim Assets Litig., No. 96-4849, at 1 (E.D.N.Y. Aug. 9, 2000).
Defendants did not appeal the District Court's August 9, 2000 Final Order and
Judgment.
3

On September 11, 2000, the Special Master, appointed by the District Court to
develop a plan to implement the Settlement Agreement, filed his Proposal. The
Special Master's Proposal stated in part: "Because Slave Labor Class II
employers must have been Swiss-Owned during the War era, [many
companies' subsidiaries] are not listed [on the table of entities seeking
releases]" (the "Swiss-ownership requirement"). In re Holocaust Victim Assets
Litig., Special Master's Proposal, Annex 1, Ex. 1 at 1 n. 2. On November 20,
2000, the District Court directed counsel for the Swiss Banks defendants to
submit a letter addressing the Swiss-ownership requirement by December 19,
2000. Then, in a Memorandum and Order dated November 22, 2000, and
before receiving the letter that the District Court had requested from
defendants, the District Court adopted, in its entirety, the Special Master's
Proposal to implement the Settlement Agreement. In re Holocaust Victim
Assets Litig., No. 96-4849, 2000 WL 33241660, at *4 (E.D.N.Y. Nov. 22,
2000). Nonetheless, in a letter dated December 19, 2000, counsel for the Swiss
Banks defendants responded to the District Court's November 20, 2000 request
and clearly disputed the Special Master's interpretation of the Swiss-ownership
requirement, which had been adopted by the District Court on November 22,
2000.

In an opinion dated April 4, 2001, the District Court issued a list of companies
that "f[e]ll within the parameters of `Slave Labor Class II' as defined under the
Settlement Agreement and as approved in [the] opinion of July 26, 2000." In re
Holocaust Victim Assets Litig., No. 96-4849, 2001 WL 419967, at *1
(E.D.N.Y. Apr. 4, 2001). These companies had fulfilled the self-identification
requirement set out by the District Court and were not excluded by the Swiss-

ownership requirement as interpreted in the Special Master's Proposal.

Accordingly, the Swiss Banks defendants filed a Notice of Appeal on April 24,
2001.
5

On appeal, defendants object to (1) the District Court's imposition of the selfidentification requirement and (2) the District Court's interpretation of the term
"Releasees" as used in the Settlement Agreement to exclude any Swiss
corporate entity that acquired slave-labor-using companies after the Second
World War and "which were owned or controlled by German or other nonSwiss entities" during the Second World War, id.

II
A. Timeliness
6

A party seeking to challenge a final order of a district court must file a notice of
appeal within thirty days of the entry of the order being appealed. Fed.R.App.P.
4(a)(1). "This time limit is mandatory and jurisdictional." Olick v. Parker &
Parsley Petroleum Co., 145 F.3d 513, 515 (2d Cir.1998) (citations omitted).

(1) Self-identification requirement

7

The Swiss Banks defendants seek to appeal the District Court's April 4, 2001
decision, which applied the self-identification requirement imposed by the
District Court's August 9, 2000 Final Order and Judgment, in which the
Settlement Agreement was interpreted to exclude Swiss companies seeking a
release under Slave Labor Class II that failed to identify themselves to the
District Court.

Plaintiffs argue that defendants' appeal of the self-identification requirement is

untimely because the requirement was clearly incorporated in the District
Court's Final Order and Judgment of August 9, 2000. Plaintiffs assert that no
appeal was taken from that judgment, and, accordingly, they assert that the
defendants' Notice of Appeal, filed on April 24, 2001, is untimely. Defendants
argue that no final decision had been rendered by the District Court's Final
Order and Judgment of August 9, 2000 with respect to the self-identification
requirement because the denial of releases based on failure to self-identify did
not occur until the entry (on April 9, 2001) of the District Court's April 4, 2001
decision.

Under this Court's decision in County of Suffolk v. Stone & Webster

Engineering Corp., 106 F.3d 1112, 1117 (2d Cir.1997) ("County of Suffolk"),
we conclude that defendants' appeal is untimely. In County of Suffolk, the
District Court modified a settlement agreement between the parties to allow for
extension of the life of a citizens' oversight commission upon "application to
the court." Id. at 1115. The consent decree was entered, and the defendant, a
regulated utility, while appealing other issues, did not appeal the provision
allowing for extension. Id. When the initial term of the citizens' oversight
commission expired five years later, plaintiffs applied to the District Court for
an extension. Id. The defendant objected, arguing that the original settlement
agreement required the parties to come to agreement on extension of the
commission's term. The District Court found that it had expressly reserved in its
final judgment the power to extend the commission's life, upon application to
the court, and, accordingly, rejected the defendant's arguments. Id. at 1116.
This Court affirmed, concluding that defendant's objections were not timely,
because it did not raise the issue in its appeal from the District Court's final
judgment in which the consent decree had been approved. Id. at 1117.
10

The position of the Swiss Banks defendants is not materially different from that
of the defendant in County of Suffolk. The District Court clearly imposed the
self-identification provision on August 9, 2000 as part of its Final Order and
Judgment approving the Settlement Agreement. The Swiss Banks defendants
did not appeal the imposition of that self-identification requirement. Defendants
argue that because the self-identification requirement was not applied to
exclude Swiss corporate entities at the time the requirement was incorporated
into the District Court's August 9, 2000 Final Order and Judgment, the selfidentification requirement was not appealable at that time. Our holding in
County of Suffolk is to the contrary, concluding that "if [the defendant] objected
to [the] interpretation, it should have moved for a modification of the court's
opinion; and if no such modification were granted, it should have challenged
the condition on appeal." Id. Because the defendant did not appeal, we
concluded that "[the District Court's] interpretation became the law of the
case," and we rejected the defendant's appeal. Id. We conclude that the position
of the Swiss Banks defendants here is in all relevant respects similar to that of
the defendant in County of Suffolk and hold that the appeal of the selfidentification provision by the Swiss Banks defendants is untimely.

11

For these reasons, the appeal is dismissed insofar as it concerns the challenge of
the Swiss Banks defendants to the incorporation of a self-identification
requirement for Swiss corporate entities seeking release under Slave Labor
Class II.

(2) Swiss-ownership requirement

12

In a Memorandum and Order dated November 22, 2000, the District Court
adopted the Special Master's Proposal, which stated, in relevant part, that "
[b]ecause Slave Labor Class II employers must have been Swiss-Owned during
the War era, [many companies' subsidiaries] are not listed [on the table of
entities seeking releases]." The Swiss Banks defendants did not appeal the
November 22, 2000 Order. However, on November 20, 2000, two days before
the District Court's adoption of the Special Master's plan, the District Court
directed that counsel for the Swiss Banks defendants submit a letter addressing
the interpretation of the Swiss-ownership requirement by December 19, 2000.
Accordingly, counsel for the defendants submitted a letter dated December 19,
2000 and argued that the Special Master's interpretation was in error. The
District Court requested further explanation, and, pursuant to the District
Court's direction, counsel for the defendants responded by letter dated February
16, 2001.

13

This Court has "found it appropriate to examine the timing and substance of [a]
motion in order to determine whether it should be deemed to extend the time
for appeal." Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 136 (2d
Cir.2000). We have extended the time to appeal in cases in which the motion
"cited no particular procedural rule," Northwestern Nat'l Ins. Co. of Milwaukee,
Wisconsin v. Alberts, 937 F.2d 77, 81 (2d Cir.1991), and where the motion
concerned "reconsideration of matters properly encompassed in a decision on
the merits." Jones, 223 F.3d at 136.

14

In the particular circumstances before us, we construe the direction of the

District Court on November 20, 2000 to defendants to submit a letter
addressing the interpretation of the Swiss-ownership requirement by December
19, 2000, together with the defendants' letters of December 19, 2000 and
February 16, 2001 as one motion for reconsideration under Federal Rule of
Civil Procedure 60(b).2 Cf. City of Hartford v. Chase, 942 F.2d 130, 133-134
(2d Cir.1991) (treating a motion filed under a local rule as a motion under Rule
59(e) since it was "as a practical matter the same thing as [a] motion[] for
amendment of judgment...."); Fort Knox Music Inc. v. Baptiste, 257 F.3d 108,
111 (2d Cir.2001) ("While normally [relief under Rule 60(b)] is sought by
motion of a party ... nothing forbids the court to grant such relief sua sponte.").
The November 22, 2000 Memorandum and Order adopting the Special Master's
interpretation of the Swiss-ownership requirement was issued two days after
the District Court directed the Swiss Banks to submit a letter on the
interpretation of the very same requirement by December 19, 2000. The District
Court could not have considered the Swiss Banks' letter until it was received on
or about December 19, 2000. The April 4, 2001 order was the first time the
District Court explicitly ruled on the Swiss-ownership requirement since

"approving" it on November 22, 2000 and receiving the Swiss Banks

defendants' letter of December 19, 2000. After receiving the defendants'
December 19, 2000 letter, the District Court directed the Swiss Banks to
provide another response, and the Swiss Banks complied in a letter dated
February 16, 2001. Both the December 19, 2000 and the February 16, 2001
letters from defendants' counsel clearly objected to the District Court's
November 22, 2000 interpretation of the Swiss-ownership requirement.
15

Accordingly, under these particular circumstances, we construe the direction of

the District Court on November 20, 2000, together with the defendants'
December 19, 2000 and February 16, 2001 letters submitted in response to that
request, as one motion for reconsideration under Rule 60(b). We conclude that
the District Court's April 4, 2001 order disposed of that motion. Defendants'
Notice of Appeal was filed on April 24, 2001. Because we interpret the
defendants' Rule 60(b) motion as having been effectively "filed" on November
20, 2000, when the District Court ordered defendants to submit a letter on the
interpretation of the Swiss-ownership requirement provision, we conclude that
the defendants' Rule 60(b) motion was made within 10 days after the entry of
the District Court's Memorandum and Order of November 22, 2000. Moreover,
because that motion was not disposed of until the entry (on April 9, 2001) of
the District Court's April 4, 2001 order, the defendants' April 24, 2001 Notice
of Appeal was timely filed under Federal Rule of Appellate Procedure 4(a)(4)
(A)(vi).3

16

B. The Merits of the Remaining Claim on the Swiss Banks' Appeal:

Interpretation of the Swiss-Ownership Requirement

17

The interpretation of the terms of a contract is a question of law and is reviewed

de novo. Tourangeau v. Uniroyal, Inc., 101 F.3d 300, 307 (2d Cir.1996) ("We
review a district court's interpretation of a settlement agreement de novo,
mindful that the consent decree is a contract between the parties, and should be
interpreted accordingly.") (citations omitted).

18

We have held that "[t]he language of a contract is ambiguous if it is capable of

more than one meaning when viewed objectively by a reasonably intelligent
person who has examined the context of the entire integrated agreement."
Krumme v. West-Point Stevens Inc., 238 F.3d 133, 138-139 (2d Cir.2000)
(internal quotation marks omitted) (applying New York law). We conclude that
the provisions concerning the Swiss-ownership requirement are ambiguous for
the reasons stated below.

19

As discussed earlier, the central dispute we must resolve is whether the

19

As discussed earlier, the central dispute we must resolve is whether the

Settlement Agreement provides releases for affiliates that were based in
Germany or other Axis countries during the Second World War, but that were
acquired by the Swiss parent company after the Second World War (the "afteracquired affiliates"). The Settlement Agreement enumerates the Releasees,
including Swiss-based Concerns and Owned or Controlled Affiliates.4 The
Settlement Agreement then provides two confusing exclusions whose
interpretation is at issue:
Exclusion I:

20

The term Releasees also excludes parent companies and other affiliates of
Swiss-based Concerns that (1) before 1945 were headquartered, based, or
incorporated in Germany or any other Axis country or other country occupied
by an Axis country between 1933 and 1946, (2) were not Owned or Controlled
Affiliates as defined herein, and (3) disguised the identity, value, or ownership
of Cloaked Assets or used Slave Labor.

21

(Settlement Agreem. at 6.)

Exclusion II:

22

A company shall not be deemed a Releasee by virtue of being an Owned or

Controlled Affiliate if (1) the company was headquartered, based, or
incorporated in Germany or any other Axis country or other country occupied
by an Axis country between 1933 and 1946, and (2) the company's parent was a
Swiss-based Concern established for the sole purpose of disguising the identity,
value, or ownership of Cloaked Assets.

23

(Id.)

24

Relying upon the asserted plain language of the Settlement Agreement, the
District Court concluded that Exclusion I applies to companies based in Axis
countries during the Second World War but that were acquired by a Swiss
parent company after the Second World War. The District Court does not state
what language in the Settlement Agreement formed the basis for its conclusion.
Element (1) of Exclusion I clearly utilizes such a time limitation based on the
duration of the Second World War. To satisfy element (1) of Exclusion I, a
company must be headquartered, based, or incorporated in an Axis country
during the period of the Second World War. However, element (2) of
Exclusion I incorporates no such explicit time period limitation. Element (2)

merely provides that the corporate entities might be excluded if they "were not
Owned or Controlled Affiliates as defined herein." It does not state that afteracquired affiliates are not Owned or Controlled Affiliates for the purpose of
receiving a release under the Settlement Agreement. In addition, the definition
of the term "Owned or Controlled Affiliate" in the Settlement Agreement does
not require that a corporate entity be Swiss-owned or controlled during the
Second World War in order to qualify for a release.5 Nonetheless, the District
Court held that the plain language of the Settlement Agreement required such a
reading, and apparently concluded from this that corporate entities "were not
Owned or Controlled Affiliates as defined herein" if the Swiss-based parent
acquired ownership or control after the Second World War.
25

The defendants, relying on the Settlement Agreement's ambiguity, argue that

the District Court's interpretation of Exclusion I to impose such a time-period
limitation frustrates the intent of the Settlement Agreementnamely, to
achieve an "All-Switzerland settlement." The defendants support their
interpretation with an account of the negotiating history of the clause. In their
view, the exclusions were added at the request of the plaintiffs, and, according
to the Swiss Banks defendants, the purpose of the exclusion was to prevent the
Settlement Agreement from releasing from liability those Axis-based
companies that had set up Swiss fronts to hide their assets. As we understand
the defendants' reading, Exclusion I merely clarifies and reinforces that certain
classes of corporate entities are not enumerated as Releasees.6 They assert that
Exclusion II carves out an exception by disqualifying a set of corporate entities
that would otherwise receive releases. They contend that Exclusion II provides
that even if a company meets the definition of an Owned or Controlled Affiliate
and thus would be generally entitled to a release Exclusion II prevents the
company from receiving a release if its Swiss parent company was established
solely to hide assets. In other words, the Swiss Banks contend that the parties
never intended to exclude all after-acquired affiliates from receiving releases
when they added Exclusions I and II. In fact, the Swiss Banks defendants claim
that after-acquired affiliates are generally entitled to a release as long as they
were Owned or Controlled Affiliates as of October 3, 1996 the date set forth
for determining whether a company qualifies as a "Swiss-based Concern."

26

We do not see how the plain language of these dense and difficult provisions
can settle this dispute. Plausible, alternative readings of the Releasee section of
the Settlement Agreement support the interpretations of both the District Court
and the Swiss Banks defendants. In short, the Settlement Agreement is
ambiguous as to whether Axis-based companies are required to have been
Owned or Controlled Affiliates during the Second World War, and thus
ambiguous as to whether after-acquired affiliates of Swiss companies may

qualify as Owned or Controlled Affiliates for release.

27

At oral argument, counsel for plaintiffs-appellees conceded the ambiguity of

the settlement provisions in question: "There is at a minimum, I hope the Court
would agree, a serious ambiguity in dealing with this language" (emphasis
added). At another point, counsel stated: "There are morethere's more than
one way to read this, you're absolutely right.... [W]e could read this five
different ways, because the language that was negotiated under the crucible of a
great deal of pressure is far from exact." At a third point, he admitted: "[T]here
isn't a single right way to read it."

28

Under New York law, if the meaning of a given contract provision is found to
be ambiguous, a court is empowered to consider extrinsic evidence. See Stage
Club Corp. v. W. Realty Co., 212 A.D.2d 458, 622 N.Y.S.2d 948, 950-951 (1st
Dep't 1995). We conclude that the provisions of the Settlement Agreement in
question are indeed ambiguous. The District Court grounded its interpretation
of the provisions upon the asserted plain meaning of the text. In the April 4,
2001 order, the District Court concluded that "[t]he defendants' argument ...
essentially involves altering the clear language defining excluded releases." In
re Holocaust Victim Assets Litig., No. 96-4849, 2001 WL 419967, at *3
(emphasis added). At another point in the April 4, 2001 Order, the District
Court stated: "The negotiating history to which the defendants allude is not
sufficient to override the plain language of the agreement." Id. at *4 (emphasis
added). Yet, the District Court also candidly admits that "the negotiating
history, at best, sends conflicting signals." Id.

29

In his letter of December 19, 2000 to the District Court, counsel for the Swiss
Banks defendants outlined a basic version of the negotiating history. The letter
stated that the parties had agreed at a negotiating session that no release would
be given in a case "where the putative `Owned or Controlled Affiliate' came
within the definition of `Owned or Controlled Affiliate' solely by virtue of its
affiliation with a `Swiss-based concern' that had been established in order to
cloak the putative affiliate." Letter of Roger M. Witten to the District Court,
dated December 19, 2000, at 3. We do not have an outline of the negotiating
history from plaintiffs. Moreover, there does not appear to have been a full
exploration of the negotiating history, including the intention of the parties, in
the District Court through submission of extrinsic evidence, such as live
testimony, depositions, or affidavits. Accordingly, we vacate and remand the
judgment of the District Court insofar as it concerns the issue of the Swissownership requirement for further proceedings consistent with this opinion.

III

30

We are mindful of the oft-repeated, and oft-recognized, need for relative speed
in the resolution of these cases, and we commend Chief Judge Korman, and
counsel for both sides, for the careful and prompt way in which they have
sought to bring these cases to a conclusion. We are confident that the parties
and Chief Judge Korman will be able to address the remaining questions with
the same care and promptness they have shown in the past.

31

For the reasons stated above, the appeal is dismissed insofar as it concerns the
challenge of the Swiss Banks defendants to the incorporation of a selfidentification requirement for Swiss corporate entities seeking release under
Slave Labor Class II and the order of the District Court is vacated and
remanded insofar as it concerns the issue of the Swiss-ownership requirement.

Notes:
1

The complete definition of Slave Labor Class II is as follows:

Slave Labor Class II consists of individuals who actually or allegedly
performed Slave Labor at any facility or work site, wherever located, actually
or allegedly owned, controlled, or operated by any corporation or other
business concern headquartered, organized, or based in Switzerland or any
affiliate thereof, and the individuals' heirs, executors, administrators, and
assigns, and who have or at any time have asserted, assert, or may in the future
seek to assert Claims against any Releasee other than Settling Defendants, the
Swiss National Bank, and Other Swiss Banks for relief of any kind whatsoever
relating to or arising in any way from such Slave Labor or Cloaked Assets or
any effort to obtain redress in connection with Slave Labor or Cloaked Assets.
Settlement Agreem. at 15-16.

We note that counsel for plaintiffs also characterizes defendants' December 19,
2000 letter "as a request for reconsideration under Rule 60(b)." Letter of Burt
Neuborne to the panel, dated January 23, 2002

Federal Rule of Appellate Procedure 4(a)(4)(A)(vi) states in relevant part:

If a party timely files in the district court any of the following motions under
the Federal Rules of Civil Procedure, the time to file an appeal runs for all
parties from the entry of the order disposing of the last such remaining motion:

...
(vi) for relief under Rule 60 if the motion is filed no later than 10 days
(computed using Federal Rule of Civil Procedure 6(a)) after the judgment is
entered.
Fed.R.App.P. 4(a)(4)(A)(vi).
4

The Settlement Agreement defines Releasees, in relevant part, as follows:

Releasees means the Settling Defendants; the Swiss National Bank; Other
Swiss Banks; the Swiss Bankers Association; the Swiss Confederation
(including, without limitation, the Cantons and all other political subdivisions
and governmental instrumentalities in Switzerland); all business concerns
(whether organized as corporations or otherwise) headquartered, organized, or
incorporated in Switzerland as of October 3, 1996, including, without
limitation, corporations incorporated in Switzerland that are owned, operated,
or controlled directly or indirectly by corporations located outside Switzerland
("the Swissbased Concerns") and their branches and offices, wherever located;
and all affiliates of any Swiss-based Concern (whether organized as
corporations, partnerships, sole proprietorships or otherwise) wherever
headquartered, organized, or incorporated in which the Swiss-based Concern
owns or controls directly or indirectly at least 25 percent of any class of voting
securities or controls in any manner the election or appointment of a majority of
the board of directors, trustees or similar body ("Owned or Controlled
Affiliates"). As to each of the foregoing Releasees, the term Releasees also
includes, without limitation, each of its predecessors, successors, assigns,
officers, directors, employees, agents, attorneys, heirs, executors,
administrators, and personal representatives wherever located.
Settlement Agreem. at 6.

The Settlement Agreement defines "Owned or Controlled Affiliates" as

[A]ll affiliates of any Swiss-based Concern (whether organized as corporations,
partnerships, sole proprietorships or otherwise) wherever headquartered,
organized, or incorporated in which the Swiss-based Concern owns or controls
directly or indirectly at least 25 percent of any class of voting securities or
controls in any manner the election or appointment of a majority of the board of
directors, trustees or similar body....

Settlement Agreem. at 6.
6

Parent companies and other affiliates of Swiss-based Concerns, the two classes
of corporate entities subject to Exclusion I, are not in and of themselves
enumerated as Releasees in the Settlement Agreement. In that sense, Exclusion
I is not necessary except to clarify that the list of enumerated Releasees is
defined